NOTES
RENEGOTIATING THE SOCIAL CONTRACT: HEALTHCARE AS A
NATURAL RIGHT
Jennifer Fahnestock*
INTRODUCTION
In the seminal Supreme Court case of Calder v. Bull,1 the justices began
what would become an ongoing debate over the presence of an “unwritten
constitution” based on the premises of natural law and societal moral
obligation. The Court debated whether certain inalienable natural rights
existed beyond already express or implied constitutional rights.2 Despite this
debate, the federal government has yet to acknowledge an express
constitutional or fundamental right to health care. Nevertheless, the debate
continues to rage on as to whether each American citizen has a natural right
to receive medical care in order to maintain a healthy and productive life as
part of a “social contract.” This debate is the underlying, and often unspoken,
tension that the Obama administration, along with the Democratic
congressional majority, faces regarding the overhaul of the domestic
healthcare system. Through the institution of an individual mandate and other
socialized-centered reforms aimed at making healthcare accessible to all, the
current Democratic regime is seeking to use universal health insurance as a
*
University of Pittsburgh School of Law, J.D. expected May 2011, special thanks to Christopher
Sigmund for his continued support throughout the writing and publication of this piece.
1.
See 3 U.S. 386 (1798).
2.
Id.
549
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means to embed within the Constitution an unwritten natural right which has
yet to be found.
When viewed in this light, the social contract begins to break down.
Because the principles of natural law are inherently based in social contract
theory,when the notion that healthcare is guaranteed as a natural right fails the
underlying social contract collapses. While the exigencies of healthcare
reform may remain pervasive, and while the call upon our leaders for change
within the health insurance industry may remain omnipresent, any such reform
must remain true to the constitutional principles and accepted premises of the
social contract upon which the United States citizens have come to rely. Any
attempt to force an artificial right where one does not naturally exist will
operate only to compound the problems of the day.
This Note will examine selected provisions of the healthcare reform bill
(the Act),3 passed and signed into law in 2010. The Act attempts to provide
universal healthcare for all persons living within the United States through the
mandate of health insurance, and thereby create a natural right. Additionally,
this Note will ground its analysis in the principles of social contract theory
and further use those principles to discern the potential presence or absence
of a natural right to healthcare.
Part I begins by developing the background and basis for constitutional
rights and natural rights, while more specifically using this background to
present the initial problem of whether a natural right to healthcare can exist.
Part II looks at the intersection between healthcare, natural law, and the social
contract. Part III examines the partisan debate surrounding the healthcare
reform legislation, how health insurance is provided for as part of that
legislation, and how that debate has affected the passage of legislation. Part
IV explores how the healthcare reform legislation creates a breach of the
social contract, and consequently shows the social and economic cost of a
forced right to healthcare. Finally, Part V argues for a different kind of
healthcare reform by providing for renegotiation of the social contract to
return to the fundamental premises of consent and individual responsibility.
PART I: CONSTITUTIONAL RIGHTS & NATURAL RIGHTS—A BACKGROUND
[F]or all our disagreements we would be hard pressed to find a conservative or
liberal in America today, whether Republican or Democrat, academic or layman, who
doesn’t subscribe to the basic set of individual liberties identified by our Founders
3.
The Quality Affordable Health Care for All Americans Act, 42 U.S.C. § 18001 et seq.
[hereinafter Act].
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RENEGOTIATING THE SOCIAL CONTRACT
551
and enshrined in our Constitution and our common law: the right to speak our minds;
the right to worship how and if we wish; the right to peaceably assemble to petition
our government; the right to own, buy, and sell property and not have it taken
without fair compensation; the right to be free from unreasonable searches and
seizures; the right not to be detained by the state without due process; the right to a
fair and speedy trial; and the right to make our own determinations, with minimal
restriction, regarding family life and the way we raise our children. We consider
these rights to be universal, a codification of liberty’s meaning, constraining all
levels of government and applicable to all people within the boundaries of our
political community. Moreover, we recognize that the very idea of these universal
rights presupposes the equal worth of every individual. In that sense, wherever we
lie on the political spectrum, we all subscribe to the Founders’ teachings.—President
Barack Obama4
A right has been defined as a freedom owned by the people of a nation
that may not legally be denied.5 More specifically, the Supreme Court has
stated that constitutional rights are individual liberties granted by state or
federal constitutions protected from undue government interference.6 Despite
the government’s ability to protect its own interests, the Constitution guards
against invasion into certain private realms.7 While these definitions may be
helpful to understand the meaning of a right in the abstract sense, they provide
little help in concretely narrowing down exactly which rights are guaranteed
(constitutionally or otherwise) and are correspondingly protected. At this point
in our nation’s history, the general population likely believes that their rights
as citizens are both fixed and static. And, while that may be true of certain
rights, a far greater majority of rights are both fluid and elusive, with a
constant argument for and against protected status. As we will see, the nature
of a right and how it is categorized directly corresponds with the level of
acceptance it receives amongst the collective American psyche.
For the sake of simplicity, any given right, at its most basic level, can be
placed into one of three distinct categories. Each category varies greatly from
the others in the weight it carries in both prestige and permanency. An express
constitutional right is easily the least questioned. Express constitutional rights
are those explicitly enumerated; they appear on the face of our governing
documents. The Founders created such rights through specific terminology the
4.
BARACK OBAMA, THE AUDACITY OF HOPE 86 (2006).
5.
See Definition of “Rights,” MERRIAM -EEBSTER , available at http://www.merriam-webster.com
(last visited Jan. 12, 2010).
6.
See generally Troxel v. Granville, 530 U.S. 57, 65 (2000) (explaining that the 5th and 14th
amendments offer heightened protection against federal and state government interference of certain
fundamental rights and liberties).
7.
Id.
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meaning of which courts subsequently interpreted and established through
years of jurisprudence. The Founders expressly guaranteed these rights, such
as the right to free speech,8 the right to bear arms,9 and the right to a jury
trial,10 among others, to all American citizens through the creation of the Bill
of Rights.
Because of their “express” nature, the Court has demanded “something
higher” when the government threatens to infringe upon an express
constitutional right.11 James Madison introduced this premise explaining:
[If a right is] incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights; they will be
an impenetrable bulwark against every assumption of power in the Legislative or
Executive; they will be naturally led to resist every encroachment upon rights
expressly stipulated for in the Constitution by the declaration of rights.12
More specifically, in United States v. Carolene Products, the Court
recognized the unequal nature of our rights and bifurcated them as such, by
creating an easily accessible framework and succinctly placing them into
qualified tiers.13 First-tier rights, or express constitutional rights, are
unequivocally recognized and rigorously protected by the Court.14 By contrast,
the Court has shown its willingness to rubber-stamp regulation of those
second-tier rights not expressly protected by the Constitution.15 In essence,
those rights falling within the camp of specifically enumerated rights hold a
judicial trump card.16 This category of rights “trumps” even otherwise proper
assertions government power.17 These express rights are embedded within the
American psyche, and clearly accepted as real and unwavering. As such,
Americans understand that they hold certain personal powers which are
protected from government interference. Because it does not appear on the
face of the Constitution, there clearly is no express right to healthcare. One
would be hard-pressed to argue otherwise; the plain language of the
8.
9.
10.
11.
U.S. CONST . amend. I.
U.S. CONST . amend. II.
U.S. CONST . amend. VI.
Robert A. Levy, Second Amendment Redux: Scrutiny, Incorporation, and the Heller Paradox,
33 HARV . J.L. & PUB . POL’Y 203, 206 (2010).
12. Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal
Theory Assist in Interpretation?, 5 N.Y.U. J.L. & LIBERTY 1, 19 (2010) (emphasis added).
13. Levy, supra note 11.
14. Id.
15. Id.
16. McConnell, supra note 12.
17. Id.
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553
Constitution does not contain even the semblance of an express constitutional
healthcare right.
Moving forward, an implicit constitutional right occupies a middle
ground territory. These are rights, although not expressly enumerated, that the
Supreme Court has found to be so fundamental that they may not be denied.
The Court has established implicit constitutional rights through the use of
penumbral reasoning, stating that, “specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give
them life and substance.”18 Using such reasoning, the Court argued that
implicit rights are necessary for the full protection of other constitutional
rights which have been expressly guaranteed.19 Therefore, because express or
first-tier constitutional rights hold such an esteemed position, the Court has
extended protection to other rights emanating from them. In the overall
framework, these implicit rights fall into a tier below express rights and
accordingly, are protected with less vigor.20 It is important to note, however,
that despite their presumably lower status, implicit or second-tier rights are
entirely grounded in the specific enumerations of first tier rights. Examples of
rights the Court has deemed implicitly embedded within other expressly held
rights include the right to vote,21 the right to procreate,22 the right to travel,23
and the right to privacy.24 As mentioned, the Court implicitly found that each
of these rights emanates strictly from an explicitly protected right. On that
point, the Court has refused to extrapolate implicit rights in certain areas
which cannot be said to have a basis in an express right despite the fact that
the general public may consider them fundamental, although not in the legal
sense of the term. Therefore, even though a right may seem fundamental in a
common sense, the Court will not bestow upon a right the legal significance
of the label of “fundamental” without it first deriving from our constitutional
scheme.25 Examples include the right to education26 and the right to receive
welfare.27
18. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
19. Id. at 485.
20. See Levy, supra note 11.
21. See Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
22. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).
23. See Shapiro v. Thompson, 394 U.S. 618 (1969).
24. See Roe v. Wade, 410 U.S. 113 (1973).
25. See Dandridge v. Williams, 397 U.S. 471 (1970) (refusing to find a fundamental right to receive
welfare); see also Plyler v. Doe, 457 U.S. 202 (1982) (refusing to find a fundamental right to education).
26. Plyler, 457 U.S. at 221.
27. Dandridge, 397 U.S. at 485–86.
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As stated above, implicit constitutional rights occupy a middle ground
due to their lack of permanency. Notwithstanding the findings of the Court,
arguments continue to persist over whether penumbral reasoning is a
legitimate form of constitutional interpretation, and whether the Founders
anticipated such expansion of the Constitution.28 Similarly, arguments
continue to persist over whether certain additional liberties should be
guaranteed through the use of penumbral reasoning. In the oft-quoted
statement, Chief Justice John Marshall hit at the core of the debate explaining:
Its nature, therefore, requires that only its great outlines should be marked, its
important objects designated, and the minor ingredients which compose those
objects, be deduced from the nature of the objects themselves. That this idea was
entertained by the framers of the American constitution is not only to be inferred
from the nature of the instrument, but from the language . . . . [W]e must never forget
that it is a constitution we are expounding.29
Perhaps unsurprisingly in light of Justice Marshall’s emphatic view of the
amorphous nature of the Constitution, implicit rights are at risk with every
change of composition in the Court. Time has shown that different Justices are
either more or less willing to find implicit rights hiding in the shadows of the
Constitution. Even with such back-and-forth at play, there is no implicit right
to healthcare; nor has one ever been found. Easily explained, the Court has
refused to find such a right implicit in other provided rights.
The third and final category of rights is noticeably the most questioned
and controversial. A natural right is not a constitutional right, for it is neither
expressly nor implicitly found within the Constitution, yet the query remains
whether such rights are nevertheless still held as protected liberties and
freedoms. Not being contingent on any law, or necessary for the protection of
any other right, a natural right is said to exist naturally in society.30 In
exploring the origins of rights, Thomas Paine defined natural rights as, “those
that are inherent to a person’s existence.”31 It derives from nature rather than
any form of positive law; its creation is entirely separate from any formation
of government. A natural right is deemed a pure, moral right; its existence is
thereby found in the moral obligations one citizen owes to the other, and based
28. See generally Helen K. Michael, The Role of Natural Law in Early American Constitutionalism:
Did the Founders Contemplate Judicial Enforcement of “Unwritten” Judicial Rights?, 69 N.C. L. REV .
421 (1991) (arguing that the Founders did not contemplate using the Constitution to find unwritten rights).
29. McCulloch v. Maryland, 17 U.S. 316, 407 (1819).
30. PATRICK RILEY , WILL AND POLITICAL LEGITIMACY 63 (1982).
31. Kristen David Adams, Do We Need a Right to Housing?, 9 NEV . L.J. 275, 289 (2009).
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555
on what “should” be protected for every human as both just and proper. It is
inalienable not because the government has deemed it to be so, but rather
because it is held by each individual apart from any positive expression or
enumerated form of government. It is for this reason that natural rights are
argued to be universally held and inherent in the human experience.
Natural rights are sometimes described as retained rights, encompassing
“natural rights that are not relinquished, but retained by the people under the
social compact.”32 The relationship between natural rights and the social
contract will be explained further in Part II of this Note. For now, it is
important to understand that retained rights were viewed as so primary and
basic to the human existence that their existence in positive law was entirely
unnecessary. Aristotle distinguished between natural justice and legal justice,
contending that “the natural is that which has the same validity everywhere
and does not depend upon acceptance; the legal is that in which in the first can
take one form or another.”33 Offering a further basis to distinguish the natural
from the positive, Cicero, referring to natural law as true law, stated, “[t]rue
law is right reason in agreement with nature; it is of universal application,
unchanging and everlasting.”34 Later, such natural rights were explained
colloquially as “the right to wear a hat and to go to bed when one pleases.”35
Their absence in the scheme of governance was of no consequence because
citizens retained the rights whether or not they were expressly safeguarded.
More specifically, retained natural rights are argued to hold three features,
“they are natural rather than positive, they are retained rather than
relinquished, and they are unenumerated.”36
Borrowing the reasoning of the Court, a constitutional right is one which
is granted by the government.37 However, this premise is the antithesis of a
natural right as these rights exist independent of the government. The
government cannot grant to the individual that which they already hold
naturally. It therefore seems clear that a natural right is not a constitutional
right. Because of this, when arguing for healthcare as a natural right, it makes
little sense to ground a right to healthcare in constitutional principles.
Furthermore, it would be incorrect to categorize this group of rights as the
32.
33.
(1990).
34.
35.
36.
37.
McConnell, supra note 12, at 19.
VICENTE MEDINA, SOCIAL CONTRACT THEORIES: POLITICAL OBLIGATION
Id.
McConnell, supra note 12, at 19.
Id. at 20.
Troxel, 530 U.S. at 65.
OR
ANARCHY ? 4
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third-tier because, unlike the rights explained above, these natural rights have
not been provided for in the dual framework established by the Court.
Controversy surrounds whether natural rights may exist at all, nonetheless
whether they can be enforced upon the government. The problem unique to
natural rights then presents itself as whether these natural rights, which have
not otherwise been given credence in the law, are legally enforceable?
The basis for natural rights in the American system can be found
particularly within the Declaration of Independence. Thomas Jefferson, in
drafting the document, built in a natural rights framework, stating that “all
men are created equal” and “are endowed by their Creator with certain
unalienable rights, that among these are Life, Liberty and the pursuit of
Happiness.”38 By the same accord, James Madison believed in natural rights
and included them as a separate and distinct category when introducing the
Bill of Rights.39 The concept of natural rights was well-known to the framers
of the Constitution at the time they were drafting that document as well.40 The
relationship that the framers saw between the Constitution and natural law is
one that would reign supreme. However, it is still disputed.41
This debate over whether a right must be derived from the Constitution
in order to be the supreme law has been at hand since the Supreme Court first
began interpreting what the framers had constructed. In Calder v. Bull, Justice
Chase and Justice Iredell began a discussion about the presence of natural
rights existing outside of the constitutional scheme and what role they were
to play in relation to the rights provided for in the constitutional text.42 In
effect, the Justices confronted the question raised earlier—whether these
natural rights are, in any sense, legally enforceable?
Firmly juxtaposed from the position Justice Iredell would take, Justice
Chase argued for the existence of legally enforceable natural rights and
contemplated the existence of an unwritten Constitution. He believed that the
Constitution should be interpreted “to contain implicitly all those individual
rights that would be essential terms of a fair social contract.”43 Relying on
moral reasoning, he articulated that, despite the existence of rights provided
for in the Constitution, there remain certain natural rights which are
38. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).
39. Daniel A. Farber, Constitutional Cadenzas, 56 DRAKE L. REV . 833, 837 (2008).
40. Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent,” 15 HARV .
J.L. & PUB . POL’Y 965, 971–74 (1992).
41. Id. at 975.
42. Calder, 3 U.S. at 386–95, 398–401.
43. Edward B. Foley, The Bicentennial of Calder v. Bull: In Defense of Democratic Middle Ground,
59 OHIO ST . L.J. 1599, 1599 (1998).
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RENEGOTIATING THE SOCIAL CONTRACT
557
guaranteed to all citizens.44 In his view, these rights derived from a social
contract each citizen enters into with society at large. The Justice stated, “[t]he
purposes for which men enter into society will determine the nature and terms
of the social contract; and as they are the foundation of the legislative power,
they will decide what the proper objects of it are.”45 According to Justice
Chase, these principles of natural law could override positive law if the
positive law was used in such a manner as to offend the natural law.46 In other
words, the government may not infringe on those rights found to exist
naturally, and any act of the legislature which conflicts with the social
contract should therefore be overridden. As explained by one scholar, “[u]nder
Justice Chase’s view, our constitutional order precludes legislation that
conflicts with the requirements of a fair social contract, ‘even if not expressly
restrained by the Constitution.’”47
Justice Iredell entirely dismissed and disagreed with Justice Chase’s
position calling it “speculative.”48 He supported this contention by arguing
that “[t]he ideas of natural justice are regulated by no fixed standard.”49 This
unrestrictive notion would permit a Justice to strike down a law on the basis
of natural justice subject only to their own conceptions of right and wrong.50
Justice Iredell rejected any maxim that would allow the Court to invalidate a
law “merely because it is, in their judgment, contrary to the principles of
natural justice.”51 Therefore, in his view, any law that violates the written
constitution would be “unquestionably void,” despite the alleged existence of
an “unwritten constitution.”52 To guard against government invasion of private
rights was to define the limitations on government through fixed and set
boundaries.53 These boundaries then also provide a settled framework on
which the judiciary could rely when evaluating government conduct.54 Justice
Iredell reasoned that the government was not constrained by natural rights,
44. Calder, 3 U.S. at 388.
45. Id.
46. Id.
47. Thomas B. McAffee, Overcoming Lochner in the Twenty-First Century: Taking Both Rights
and Popular Sovereignty Seriously as we Seek to Secure Equal Citizenship and Promote the Public Good,
42 U. RICH . L. REV . 597, 602 (2008) (internal quotations omitted).
48. Calder, 3 U.S. at 398.
49. Id. at 399.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
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further stating that the very fact of a written constitution is authority against
the position that natural justice may be called upon.55
Looking at the issue of a natural right to healthcare against a background
of Calder v. Bull, it may seem as if the Justices’ concerns are not directly at
stake in this context. Whereas, government is neither infringing upon a natural
right, nor is government being constrained by a natural right. Instead, it seems
the government is seeking to create a natural right—that all citizens are
entitled to healthcare by securing health insurance for them. But, such an
analysis would prove far too superficial. The contemplated issue surrounds
whether a natural right to healthcare can exist, and if so, whether government
would be bound to recognize it. But in this case, as acknowledged, the
government is attempting to create a natural right, thereby binding itself to act
in accordance with the right it has created. In a single undertaking, the
government both forms the existence of a natural right, and compels its
enforceability by acting as if it were already their duty to do so. As a result,
government leaps into two broad assumptions: it assumes that a natural right
to healthcare can correctly exist, and it assumes that natural rights are primary
and legally enforceable in our constitutional scheme.
It seems clear that Justice Chase and Justice Iredell would find this
contrary to both the principles of natural justice and positive law. As
mentioned by Justice Chase, the existence of any natural right derives strictly
from the social contract as agreed upon and entered into by the governed
individuals. Noticeably, under this view, the principles of natural justice
cannot be pushed upon the government when they flow from the government
itself rather than the social contract. To be sure, in that situation, the
government seeks to use the presence of an unwritten constitution to protect
its own creation. Yet, the unwritten constitution exists for protection against
government overreaching, it contains those rights maintained outside of the
government and remain untouchable; it does not exist for use by the
government to protect its own interests and exertions of power. Perhaps more
clearly, Justice Iredell’s disagreement would stem from the very premise
invoking principles of natural justice. There are no fixed standards or
boundaries that would control the government when it creates a right. It is
restricted merely by its own discretion and desires. And yet, the existence of
the Constitution itself is meant to protect against that exact manner of
unchecked government action. To be sure, it is unlikely that the government
would seek to restrict its action when operating in the realm of its own
55. Id. at 388–98.
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RENEGOTIATING THE SOCIAL CONTRACT
559
creation or “brainchild.” This provokes the ultimate question of whether a
natural right to healthcare exists outside any of alleged government creation.
And further, whether its existence makes it the duty of the government to act
in accordance with, guarantee, and not infringe upon that right.
Undoubtedly, those who would argue that healthcare deserves status as
a guaranteed right do so, by placing it within the realm of natural rights. It has
indeed been demonstrated that a right to healthcare does not fit within either
of the other two categories, for it is neither express nor implicit.56 Specifically,
in arguing for healthcare to be recognized as a natural right one scholar
analogized healthcare to be:
A human right, the existence of which derives from principles of natural law, is
based in the dignity and worth of the human being. Thus, the right exists regardless
of whether positive law has given it expression; a human right not recognized by
positive law is a failure in the law, not an absence of the right. A just government is
compelled to recognize the rights of its citizens.57
Under this reasoning, a natural right to healthcare exists regardless of whether
it has been established by the Constitution. Because of its natural existence,
the government must give the right due recognition.
Others, however, have recognized the difficulties in this view.
Specifically, another scholar has noted three distinct problems that follow
from arguing for the superiority of natural law.58 These same problems would
be directly at stake in relying upon principles of natural justice to argue for a
right to healthcare. Zuckert has labeled those problems: the priority problem,
the substantive problem, and the foundational problem.59 Under the priority
problem, the question arises as to how the duties of natural rights and natural
law relate to one another and to other moral concepts?60 More simply, if the
right to healthcare exists among a battery of other naturally existing rights, as
they all begin to intersect, which has priority? Furthermore, would a natural
right to healthcare take priority over even those first-tier express constitutional
rights which have been given a judicial trump card in other contexts? Under
the substantive problem, there remains a distinction between natural rights
56. See infra pp. 4–8.
57. Alison Barnes, The Various Human Rights in Healthcare, HUMAN RIGHTS MAGAZINE , Fall
1998, at 12.
58. Michael P. Zuckert, Do Natural Rights Derive from Natural Law?, 20 HARV . J.L. & PUB . POL’Y
695, 701–03 (1997).
59. Id. at 702.
60. Id.
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which are negative and natural rights which are positive. Zuckert argues the
existence of positive natural rights, or, in other words, the obligation to confer
and provide rights, is far less clear than the existence of negative natural
rights, or the obligation to refrain from infringement.61 There is a distinction
between what the government is compelled to recognize and what the
government must affirmatively provide for. Similarly related, the foundational
problem confronts the issue of, where natural rights and natural law duties
come from, if they are deemed to exist? Since they are natural, Zuckert
queries, “[h]ow do we know of them, and how do we justify them?”62
As the argument goes in favor of the healthcare legislation, the
government must provide health insurance in order to secure the natural right
to healthcare. And, the government must do so because the worth of all
humans demands it. However, this reasoning is faulty. Certainly, it would be
backwards to argue that the value and dignity of all human beings is not
worthy of being sustained through healthcare. In other words, the contention
of this counter-argument is not that human beings are not worthy of
maintaining a healthy life. On the contrary, every human being is worthy of
the right to life, liberty, and the pursuit of happiness regardless of their status
in the social hierarchy.63 Yet, it is difficult to see how ones’ worth by itself
can automatically translate into certain rights that government is compelled to
recognize. Citizens may be deserving of far more than they have, but our
government does not dole out provisions which have not otherwise been
explicitly or implicitly recognized based solely on a citizen’s worth. There
needs to be some bridge or connection between ones’ natural existence and
worth, and the rights a government provides. This link comes in the form of
a social contract. More specifically, in our form of government, our
Constitution exemplifies this social contract. A right to healthcare does fit
within the framework of our Constitution.
PART II: HEALTHCARE, NATURAL LAW & THE SOCIAL CONTRACT
Justice is the end of government. It is the end of civil society. It ever has been and
ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a
society under the forms of which the stronger faction may as truly be said to reign
as in a state of nature, where the weaker individual is not secured against the
violence of the stronger; and as, in the latter state, even the stronger individuals are
61. Id.
62. Id.
63. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
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561
prompted, by the uncertainty of their condition, to submit to a government which
may protect the weak as well as themselves. . . .—Alexander Hamilton64
In order to understand the broader impact of the Act, it is important to
appreciate the basis of natural rights and the subsequent interplay between
natural rights and the larger social scheme. The existence of natural rights
derives directly from the corresponding theory of the existence of a social
contract. Examining natural rights through the lens of the social contract, it
becomes clear that creation of a natural right to healthcare is based on flawed
and unsustainable reasoning. Because of this flawed reasoning, the healthcare
legislation based on such unstable principles cannot succeed.
The social contract specifically deals with the individual citizen’s relation
to the larger community, and the distribution of power between the individual
and governing society. Human beings as individuals begin in a state of nature,
entirely unregulated, holding certain inalienable natural rights.65 The social
contract exists for the preservation of these and other rights. By entering the
contract, “people chose to relinquish [certain natural rights] in order to
promote the good, prosperity and safety of society.”66 By the same account,
under the social contract, people retain certain natural rights which the
contract itself is meant to protect.
The theory advocates that each person’s moral and political obligations
are dependent upon a contract or agreement between all citizens to form a
greater good, or a society.67 Society is thus, created through establishing this
contract, whereby all citizens—the parties to the contract—agree to live
together in harmony for their mutual benefit.68 In this sense, it is important to
distinguish the harmony created by the contract from the alleged harmony
created by communal living and communistic-organization. The contract
exists to maintain basic political rights. Corresponding duties derived from the
contract are placed on the individuals who have contractually obligated
themselves. Unlike other maxims behind socialism or communism, at the basis
of the contract is the protection of the individual, rather than the greater good.
The individual enters the contract to ensure opportunity to pursue their own
gain. Individuals promote the order and prosperity in society recognizing it to
be the means through which they will achieve their own goals. Hence, the
64. THE FEDERALIST NO . 51 (Alexander Hamilton).
65. MEDINA, supra note 33, at 30.
66. McConnell, supra note 12, at 19.
67. MEDINA, supra note 33, at 16–17.
68. See generally MICHAEL LESSNOFF , SOCIAL CONTRACT 54 (1986) (explaining that contract as
“multilateral covenants” that authorize a sovereign government to preserve the peace).
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contract protects the opportunity to success rather than guarantees the
achievement of it.
The first modern philosopher to articulate a detailed social contract theory
was Thomas Hobbes. According to Hobbes, individual self-interest prevented
the creation of a society.69 By this account, individuals were in constant
competition with each other. With a scarcity of resources, individuals’
interests were never entirely fulfilled or secure. In an unregulated scheme, the
interests of one’s neighbor presented a constant threat because these
contradictory interests could take precedent should the neighbor decide to
assert them. Because of this, there was a consequent need to join together in
some organized fashion so that every citizen could receive full and equal
access to opportunities. The social contract, to Hobbes, was an occurrence
during which individuals came together and ceded some of their individual
rights so that others would also relinquish some of theirs.70 This resulted in the
establishment of society, and by extension, the establishment of a ruling
government. The creation of government resulted in a sovereign entity meant
to preserve these new collective rights that would now provide the basis to
regulate societal interactions.71 The government, therefore, acted as a fiduciary
of sorts, holding individual rights in trust for their security and fruition. Thus,
the framework for government was limited by the rights it was established to
protect.
The philosopher Rousseau, formulated his own conception of the social
contract, referring to it as an “exchange . . . for a more secure” life,72 and a
“covenant . . . which serves as a basis for all other rights.”73 The contract
represented a “reciprocal commitment” which established the basis for two
distinct relationships.74 Medina explains that “[t]he social contract has been
associated with two different concepts: the concept of the contract of
government, and the concept of the contract of society.”75 First, the contract
regulated the relationship between each individual citizen and the
government.76 It created the basis for a legitimate political authority.77 In this
69. MEDINA, supra note 33, at 12–13.
70. Id. at 15.
71. See id. at 17.
72. JEAN -JACQUES ROUSSEAU , THE SOCIAL CONTRACT 77 (Maurice Cranston trans., Penguin Books
1968) (1762).
73. Id. at 50.
74. Id. at 62.
75. MEDINA, supra note 33, at 5.
76. ROUSSEAU , supra note 72, at 62.
77. MEDINA, supra note 33, at 5–6.
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563
sense, the contract restricted government action that may infringe on the
individual. Additionally, the contract restricted individuals from overpowering
and overtaking the government. Second, the contract regulated the relationship
between each individual citizen and his fellow citizens.78 This relationship
served as the basis for societal order—organizing individuals into a greater
collective body. Within this distinct relationship, the contract prevented
individual interests from inhibiting the general welfare of the community. In
return, the contract prevented community interests from preceding the
interests of the individual.
Rousseau reinforced the view of Hobbes that, “the government is formed
as an association of people with a desire to be governed in order to achieve
certain goals, namely, ‘the protection and prosperity’ of the members of the
association.”79 The contract, however, was not impenetrable. The covenants
laid down in the contract could be broken if a certain degree of unity was not
maintained.80 A contractual breach becomes inevitable when sectional
societies and particular interests begin to exert influence over greater
society.81 Gilmore argued that Rousseau’s underlying contention was that
small disparities in opinion were of little consequence, “sectional based issued
cannot prevent the general will of the people . . . from prevailing.”82 However,
differences which split across broad bases of society and comprehensive
sectional disagreements pitted against the general will of the people prevented
contract purposes from being realized.
Rousseau further discussed the details of that which emerges out of the
social contract—a ruling government. In explaining the import of a
governmental structure, Rousseau suggested a primitive form of checks and
balances. He argued that a system is deficient when the legislative and
executive branches become united without a sufficient degree of independence
between the two.83 As Rousseau described it, the deficiency emerged when the
prince and the sovereign are embodied in the same branch; such a scheme
symbolized a “government without government.”84 As support for this,
Rousseau reasoned that, “[i]t is not good that he who makes the law should
78. ROUSSEAU , supra note 72, at 63.
79. Brian Gilmore, American Rousseau: Barack Obama and the Social Contract, 35 T. MARSHALL
L. REV . 9, 20 (2009).
80. ROUSSEAU , supra note 72, at 150.
81. Id.
82. Gilmore, supra note 79, at 20.
83. ROUSSEAU , supra note 72, at 112.
84. Id.
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execute it, or the body of the people should turn its attention away from
general perspectives and give it to particular objects.”85
The philosopher John Locke expounded Hobbes’ and Rousseau’s
exploration of the creation of government, but Locke’s views were specifically
contrasted with Hobbes. While Hobbes argued that near-absolute authority
was granted to the government by the terms of the contract, Locke believed
that government derived its legitimacy directly from the consent of the
governed.86 Under Locke’s configuration, men must consent to two separate
acts for authority to be legitimate. First, they must “consent[ ] to make one
community or government . . . and make one body politic, wherein the
majority have a right to act and conclude the rest.”87 Second, the majority
achieves this by placing its “supreme power” in the legislature.88 Therefore,
the government lacks authority to act under the social contract when its action
does not promote the common good or the will of the majority. In conjunction
with Locke’s disagreement, different objections to Hobbes’s early formulation
arose including that “Hobbes misused the term ‘right’ when he described it as
a pure liberty with no correlative duty.”89 On the contrary, a right projected a
reciprocal attaching duty upon others which prevented their outside
interference and infringement with that right.90
In development of social contract theory, as recognized by Zuckert, Locke
laid down three basic premises:
First, Locke said that he meant ‘right’ to be that sort of moral claim that carries along
with it claims to exclusivity. Second, Locke said that there is such property in or by
nature; that is, human beings possess natural rights of the sort that imply natural
duties. Finally, Locke concluded that justice is, therefore, by nature.91
Although each individual takes ownership over their personal rights, for a
contract party’s natural rights to be protected by the social contract, that party
must agree to protect the natural rights of others as well. While a natural right
is exclusively held by an individual, the implication remains that certain duties
must be correspondingly imposed under the contract.
85. Id.
86. Zuckert, supra note 58, at 725.
87. ERNEST BARKER, Introduction to SOCIAL CONTRACT : ESSAYS BY LOCKE , HUME , AND ROUSSEAU
xx–xxi (photo. reprint. Oxford Univ. Press 1967) (1947).
88. Id. at xxi.
89. Zuckert, supra note 58, at 727.
90. Id.
91. Id.
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RENEGOTIATING THE SOCIAL CONTRACT
565
Despite emphasis on the common good, at the basis of the social contract
is self-preservation. The contract represents a coming together of separate
men, each willing to guard the interests of another, so that their own interests
may be guarded in return. It is upon this premise that the more modern view
of the social contract often speaks in terms of duties and obligations, rather
than just rights conferred. In order for one citizen’s natural rights to be
protected, it becomes necessary for that citizen to protect the natural rights of
other parties to the contract, thereby pooling certain powers to be exercised
collectively. Therefore, the individual citizen must assume certain duties in
order to receive the benefits and protections he desires. The contract, then, is
a means of establishing reciprocal rights and duties, privileges and
responsibilities as basis of the state.92
These theories of government based on a social contract were later
incorporated into the United States governing ideology principally through
James Madison.93 More specifically, the Founders relied heavily upon the
works of Locke while establishing the American democratic form of
government.94 As evidence of this, Thomas Jefferson believed that the
preservation of certain natural rights was an essential part of the social
contract, and that consent of the governed was fundamental to any exercise of
governmental power.95 The social contract at work within the United States is
specifically embodied in the form of our Constitution, which lays out the
rights of citizens and the responsibilities of government. Through the
Constitution, government was formed and became the necessary medium to
secure the rights of a free and equal American people. The Founders arguably
believed that the American social contract would adequately protect natural
rights as they were understood. The contract they fashioned, however, did not
contemplate government acting outside its bounds of authority, and going
beyond that which was necessary to secure the interests of the people it was
meant to protect.
With this background, we can delineate three main provisions which
provide the basis for the social contract: the hallmark of consent, reciprocity,
and moral obligation. Each provision represents a mutually binding term in the
contract. If one of the three provisions is not adhered to, the result is a material
92. RICHARD ASCRAFT , LOCKE ’S TWO TREATISES OF GOVERNMENT 38–39 (1987).
93. See NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON
(C.C. Tansill ed., 1987).
94. Andrew C. Spiropoulos, Rights Done Right: A Critique of Libertarian Originalism, 78 UMKC
L. REV . 661, 663 (2010).
95. Id. at 667–68.
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breach to the contract. In this context, when the government itself breaches the
contract by failing to adhere to any of the above provisions, its actions are no
longer constitutionally grounded. Because the government is a creation of the
contract itself, when the contract breaks down the source of government
power becomes illegitimate.
Primarily, in order to enter into any contract, consent is required from
both parties. By traditional contract standards, one who argues for the validity
of any contract must primarily point to both the offer granted and the
acceptance given.96 A contract cannot be valid unless all parties voluntarily
agree to it.97 This agreement may be formed explicitly or implicitly, as long
as it is given without coercion. In order for consent to be given voluntarily, the
reasons for entering the contract must remain viable. By extension, the
necessity of consent is inherently grounded in the freedom of choice—a core
American value. Citizens may be politically obligated to act in certain ways
or obey certain rules, removing a degree of their autonomy and choice, only
because they have previously chosen to obligate themselves. If involvement
is forced, the contract will not remain a binding document. In that event, those
who are forcefully involved will choose other methods to protect their rights,
even if it means reverting backwards, pulling away from society-at-large, and
doing so on an individual basis.
Without consent, the strong ties to the general community, which once
existed exclusively due to the contract, will break down. It follows, that the
social contract is formed and maintained only by the intentional and deliberate
union of the citizens who enter into the contract for specific purposes. The
basis of societal order requires this mutual assent. The contractual promise
acts as a prima facie obligation to obey the law constructed by the contract.
Therefore, voluntary agreement, which by necessity requires the absence of
coercion, is the essence of the hallmark of consent.
Similarly, in order for the social contract to thrive, all citizens who choose
to contract must be willing to forgo certain privileges in order to receive the
protections they seek, and once formed, consent remains binding only so long
as the other party does not violate the terms of the contract. By this account,
the social contract requires a certain amount of reciprocity between the parties
involved in the contract. Without reciprocity, there would be a lack of
incentive to enter into the contract in the first place. Practically speaking, it
seems highly unlikely that a party would bind itself to a contract that would
96. RESTATEMENT (SECOND ) OF CONTRACTS § 22 (1981).
97. Id. at §§ 174–77.
2011]
RENEGOTIATING THE SOCIAL CONTRACT
567
require the party to shoulder all the burden of the contract terms alone without
receiving any countervailing advantage for doing so.
Again, referring to basic contract principles at law, any valid contract
requires consideration that includes the mutual exchange of benefits and
detriments to the contracting parties. In the context of the social contract, the
consideration follows in a less tangible form, but nevertheless remains real
and present. The individual gives up certain liberties for the benefit of the
community. But, the individual’s willingness to forego does not stem from a
purely generous frame of mind. In return, the individual receives certain
benefits from the community, such as the protection of their rights. In order
to bind an individual to the contract, Medina argues that three principles must
be satisfied, all grounded in the principle of reciprocity:
(1) the state and its institutions must be generally beneficial; (2) most people must
generally act compatibly with the state’s institutions (including its laws), so that if
we disobey we take unfair advantage of their compliance . . . ; and (3) we must
voluntarily and openly accept, in a real sense, the benefits provided by the state.98
It follows, then, that citizens consent to the terms of the contract for the
advantages it confers. The obligation conferred on citizens, in return, requires
them to live up to the bargain made. However, the advantages must be mutual,
and not one-sided, in that each party is receiving rights adequate to
compensate for those he is giving up.
Lastly, the social contract distinguishes itself from general contract
principles in one final way. It finds its basis in moral obligation. As explained
earlier, the consideration holding up the social contract is less tangible than
the consideration generally underlying most contracts. Whereas services
performed or monetary provisions may be the basis for obligation in most
cases, under the social contract, the basis for obligation finds its origination
in moral reasoning. Although the individual seeks to protect his own rights,
it is also out of concern for the greater good that the individual chose to enter
into a societal agreement. Rather than just conferring on the state a blanket
right to command, the contract generates moral reasons, stemming from a
sense of justice, for each individual to obey the law.99
The benefits derived from the contract have been, in essence, requested.
During the bargaining process, each individual voluntarily accepted the terms
of the contract so long as their needs were appropriately provided for. This
98. MEDINA, supra note 33, at 151.
99. Id. at 152.
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means that, hypothetically speaking, individuals came to the bargaining table
with certain non-negotiable demands. They requested that certain provisions
be made by the contemplated governmental scheme for the protection of their
rights before they would willingly consent. Therefore, once an individual
accepts the benefits he has previously requested, he will feel a sense of moral
obligation, rather than entitlement, to see to it that the other parties to the
contract receive the benefits they have requested as well. This feeling of
entitlement is absent because the parties have previously foregone certain
privileges in order to create the contract. As noted further, “[a] person is under
an obligation to do his part as specified by the rules of an institution whenever
he had voluntarily accepted the benefits of the scheme or has taken advantage
of the opportunities it offers to advance his interests, provided that this
institution is just or fair.”100 Individuals hold this moral obligation because
they understand that individual success cannot be realized in the absence of
success of others, as well.
In summary, citizens hold this social contract between each other and
with the government. The government represents the organization and order
of society which has been chosen and created by the contract. Therefore, the
government represents a microcosm of the social contract in that certain
powers are granted to government for protection of the individual, and by
extension, the greater good. Government exists purely at the pleasure of the
people who enter into the contract. In particular, our governmental framework
is established through the Constitution, which sets its parameters as
contemplated by the contract. Consequently, as an entity arising out of the
contract, the government has a duty to exercise its powers wisely and pursuant
to the purposes and terms of the social contract. By the same account, if the
government attempts to force to the social contract to its limit, the contract
will inevitably breakdown. Breach of the contract occurs when the
government acts outside of the reasons for its establishment. The current
proposed healthcare legislation causes a breakdown of the social contract by
forcing the existence of a right that is not naturally rooted, thereby breaching
each of the three terms which form its basis.
PART III: HEALTHCARE REFORM LEGISLATION & THE PARTISAN DEBATE
We have a mission. We have a mandate. We have a moral obligation to lead this
Nation into a new era where health care is a right and not a privilege. Now is the
time. Be on the right side of history, the right side of the sick, the right side of the
100. See id. at 150.
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RENEGOTIATING THE SOCIAL CONTRACT
569
vulnerable. We have been tracked down by the spirit of history. If we fail to act on
health care, if we fail to do what we must do, history will not be kind to any of us.
So I say to you, my colleagues: be not afraid. Be not afraid. Be of the courage. The
time is always right to do what is right. On this day, at this moment, answer the call
of history, and pass health care reform, and pass it today. Pass it now for the people
of this country.—Rep. John Lewis (D-GA)101
In an attempt to enact unprecedented healthcare reform legislation, in
2009, the 111th House of Representatives began what would prove to be a
tumultuous process seeking to pass sweeping healthcare reforms.
Subsequently in 2010, after much debate, the Congressional majority passed
the Senate-version of the bill with a vote that was split almost exactly down
party lines.102 The Quality Affordable Health Care for All Americans Act (the
“Act”) was signed into law by President Obama, who had advocated for such
sweeping healthcare reform since the time of his presidential candidacy.103
Looking back as a precursor to both the legislation and Congressman
Lewis’s above-quoted statement, during the 2008 Presidential Debate, thenSenator Obama was asked whether healthcare was a “privilege, responsibility
or right?”104 Contrasted with his opponent Senator John McCain, then-Senator
Obama responded:
I think it should be a right for every American. In a country as wealthy as ours, for
us to have people who are going bankrupt because they can’t pay their medical
bills—for my mother to die of cancer at the age of 53 and have to spend the last
months of her life in the hospital room arguing with insurance companies because
they’re saying that this may be a pre-existing condition and they don’t have to pay
her treatment, there’s something fundamentally wrong about that.105
It was this mentality which served as a baseline, and it was under this
leadership, that the Democratic majority pushed forward to enact healthcare
legislation that was centered on an ideology that viewed healthcare as right,
rather than a “responsibility” or a “privilege.”
Based on the above statements, it can be inferred that Democrats,
including Congressman John Lewis, view this legislation as an opportunity to
101. 111 CONG . REC . H12857 (daily ed. Nov. 7, 2009) (statement of Rep. John Lewis).
102. Final Vote Results for Roll Call 887 (Nov. 7, 2009), http://clerk.house.gov/evs/2009/roll887
.xml.
103. See Obama Signs Health Care Overhaul Bill, With a Flourish, N.Y. TIMES.COM (Mar. 23, 2010),
http://www.nytimes.com/2010/03/24/health/policy/24health.html.
104. Transcript of Second McCain, Obama Debate, CNN.COM (Oct. 7, 2008), http://www.cnn.com/
2008/POLITICS/10/07/presidential.debate.transcript/ [hereinafter Debate Transcript].
105. Id.
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make healthcare a right to all United States citizens. It is important to note,
however, that in this regard, Congressman Lewis and his colleagues speak of
making healthcare a right not through any constitutional rights, but rather,
through a moral obligation.106 As demonstrated, healthcare as a right is
entirely without constitutional support.107 It is neither expressly provided for
nor has it been implicitly found. Therefore, in order to argue for healthcare to
assume status as right, the proponents of the Act embed healthcare within our
system of rights by claiming it has a higher natural existence. Throughout the
debate period for the proposed legislation, opponents consistently questioned
Democrats about where they found the constitutional authority to enact such
a Bill creating a right to healthcare. But, because the right is not
constitutionally based, Democrats were unable to provide a satisfactory
answer. This is why they forced the right as a natural one which would
seemingly exist outside of the constitutional structure. Congressman Lewis
purposefully speaks of history’s call upon the Congress and their mandate to
act, implying that the right to healthcare would be a certain one of those
inalienable rights naturally existing outside of government for centuries.
As further support, in then-Senator Obama’s statement, he fails to invoke
any constitutional right from which a right to healthcare may derive, but rather
speaks about how in “a country as wealthy as ours,” it would be morally
inequitable to allow people to worry about paying for their medical
treatment.108 This talk of equities similarly connotes a sense of fairness and
moral obligation rather than strictly constitutionally-principled reasoning. This
thinking exemplifies the general sentiment among Act proponents. In this way,
the Democratic Congress, along with the President were not attempting to
impute healthcare as a constitutional right, but embed healthcare as a natural
right by invoking the ideals of the social contract to justify its protection as
such.
Perhaps unwittingly, by invoking natural right status, the Democrats are
forced to also accept the proposition that healthcare existed as right prior to
their actions. Using the principles established by Locke, the absence of a
constitutional right to healthcare does not result in the absence of a right
altogether, but rather results from a failure of the government to secure such
a right. Arguing again from a social contract standpoint, John Locke has stated
that the natural rights of individuals “are not bounded by the positive limits of
106. 111 CONG . REC . H12857 (daily ed. Nov. 7, 2009) (statement of Rep. John Lewis).
107. See supra Part I.
108. Debate Transcript, supra note 104.
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RENEGOTIATING THE SOCIAL CONTRACT
571
kingdoms or commonwealths.”109 As a result, Democrats seek to rectify this
oversight that has existed since the creation of the American form of
government. In doing so, they go beyond merely recognizing a right to
healthcare that cannot be infringed, but affirmatively provide for the right.
To be certain, the Act makes no outright assertion that healthcare is now
a right. Neither this, nor similar wording can be found within the plain
language of the bill; a declaration without more would be of little assistance
in this context. One could declare healthcare as a right without seeing any
meaningful change in the number of citizens with proper healthcare. There lies
a multitude of intervening factors standing between a bare declaration of
healthcare as a right in an abstract sense and a real endowment of healthcare
upon each and every citizen. Democrats have attempted to implement this socalled natural right, providing for more than just a declaration by securing
health insurance for all citizens. The Democrats sought to streamline
healthcare by making sure that every American citizen received the same
quality of care through use of the same quality insurance without inequitable
disparities. The right, in the Democrats’ view, should not depend on ones’
income and ability to afford it. Ensuring that each person has an acceptable
level of health insurance likewise ensures that each person will have a right
to use the full panoply of health services available in our country so as to
maintain good health. Insurance, therefore, represents the means through
which healthcare and the right is realized.
The Quality Affordable Health Care for All Americans Act attempts to
create and extend a natural right specifically through the following provisions
discussed. Initially, the most significant, and yet troublesome, provision is the
requirement of health insurance. The Act creates an individual mandate which
requires all lawful residents enroll in a healthcare plan, purchase, and maintain
qualified insurance coverage.110 “Qualified insurance coverage” is a term-ofart defined by the Act as the bare minimum of coverage permissible.
Minimum coverage is further defined depending on which market a particular
individual falls into—specifically relating to whether they purchase the
insurance themselves or whether it is provided by their employer.111 Therefore,
not only does the Act force individuals to enter the market and purchase
109. ASHCRAFT , supra note 92, at 179.
110. STAFF OF REPUBLICAN S. POL’Y COMM ., 111TH CONG ., LEGISLATIVE NOTICE : THE QUALITY
AFFORDABLE HEALTH CARE FOR ALL AMERICANS ACT , NO . 28, at 6 (Dec. 2, 2009) (explaining provisions
of the Act), available at http://rpc.senate.gov/public/_files/L28HR3590HealthCare120209ac.pdf
[hereinafter Legislative Notice].
111. Id. at 7–8.
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insurance, it also dictates the acceptable amount of insurance coverage they
must purchase. Each plan offered and purchased in any insurance market must
meet certain requirements prescribed by the Act.112 In the face of this mandate,
individuals who do not have insurance, or those who do not have “acceptable”
health insurance as defined by the Act, will be assessed a penalty of up to
$750.00 per individual, phased in over three years beginning in 2014.113 All
citizens must attest on their tax returns that they have obtained the appropriate
level of benefits.114 Similarly, insurers must also report to the IRS.115
This individual mandate is the first attempt to create universal health
insurance, embedding in each citizen their natural right to healthcare. A
natural right occurs, theoretically speaking, only at the point when all
individuals retain it and no one is excluded. If certain individuals do not hold
the right, it cannot be inherently held by all people. As the theory goes, if the
government can force all citizens to retain insurance, then the right can be
secured because of its universality. It automatically jumps to the assumption
that the resulting access to healthcare becomes enshrined with the status of a
right merely because everyone holds it. The need behind this requirement is
that the government will be able to control the substance of the right so long
as it can dictate the bounds in which it occurs. It obligates people to procure
the right for themselves based on the government’s determination of how the
right should be shaped.
Essentially, through the mandate, the government is saying, “this is your
right, and this is what your right will have to look like—now go out and buy
it.” Up to this point in time, such an approach of compelling individuals to buy
their right in order for it to come into existence is unprecedented. Individuals
are forced to spend their money on this right, whether or not it is a right which
they value. Furthermore, by assessing a penalty on those who choose not to
buy-in, individuals will engage in a variation of cost-benefit analysis to
determine whether the right is worth it. In many cases, “the levels of these
fines are generally too low to cause a rational individual to insure.”116
Citizens, then, will have the ability to negotiate away the right, leaving some
people with it and some people without it, based on their individualized
economic determinations. If certain members of the population accept the
112.
113.
114.
115.
116.
Id. (explaining the requirement of “essential health benefits”).
Id. at 7.
Id.
Id.
Id. at 7 n.25.
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RENEGOTIATING THE SOCIAL CONTRACT
573
penalty rather than the right, the problem of whether the right can be truly
universal again arises.
The Act contains certain provisions which may be equated to a “hardship
waiver” for those who are unable to independently afford the mandate. In
essence, an individual may claim that obtaining insurance is unaffordable in
their circumstances and a forced purchase would amount to a hardship. To
accommodate this scenario, there is a full exemption from the mandate “if the
premiums for the lowest-cost plan available exceed 8 percent of income . . .
and for individuals below 100 percent of the Federal Poverty Level.”117
Eligibility for unfunded Medicaid coverage is expanded for individuals up to
133 percent of the Federal Poverty Level—a 40 percent increase to the
Medicaid rolls.118
For others claiming hardship that do not fit within these categories, the
Act provides tax credits, or subsidies, for individuals falling between 133 and
400 percent of the Federal Poverty Level.119 These “affordability credits” are
offered to assist lower-income individuals so that they might comply with the
mandate and purchase the appropriate insurance coverage. The credits derive
from a sliding scale based on the ability to pay, and are phased out as income
level rises.120 The scale is fashioned so that individuals will pay no more than
9.8% of their income on insurance premiums.121
The credits are completely phased out when income reaches 400 percent
of the Federal Poverty Level.122 Therefore, individuals are eligible for a
subsidy if they earn less than 400 percent of the Federal Poverty Level, and
they are not offered affordable coverage through their employer.123 In other
words, an employee offered employer-sponsored care will not be eligible for
the credits so long the employer option is affordable. The Act has defined
“affordable” as a plan which covers more than 60 percent of the actuarial
value, and has premiums less than 9.8 percent of their income.124 Further,
“actuarial value” is defined as “the percentage of the average expected
medical costs than a plan will cover.”125 For example, a plan which has an
actuarial value of 60% will cover approximately 60% of the plan-holder’s
117.
118.
119.
120.
121.
122.
123.
124.
125.
Id. at 7.
Id. at 12.
Id. at 9.
Id.
Id.
See id.
Id. at 9–10.
Id. at 10.
Id. at 9 n.30.
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actual medical bills. Individuals who do not fall within these parameters will
be independently responsible for compliance with the insurance mandate, and
by extension, will also become responsible for those claiming hardship.
According to the House Committee on Education and Labor, these provisions
create a shared responsibility between the individual, the employer, and the
government in securing healthcare for all Americans.126
At this point, it is important to note that individuals with employer-based
coverage are automatically ineligible to receive a subsidy to assist with the
payment of their health insurance, regardless of their income. Also, even for
those eligible, the government subsidy does not come without strings attached.
In order to receive affordability credits, individuals must purchase their health
insurance plan through the newly-created state Health Benefit Exchanges
(“Exchange”).127 By 2014, states must establish an Exchange and force the
participation of all insurers operating in the state.128 The Exchange would be
analogous to a large marketplace where a variety of merchants, in this case,
the insurers, come to show their wares, in this case the qualified health plans.
Exchange administrators will determine whether the plans offered meet
minimum requirements necessary to be deemed a “qualified health plan” and
be eligible for sale to individuals and small employers.129
The purpose of the Exchange is to provide further regulation of the plans
being offered in it. For example, each plan is given a rating based on its
quality and price.130 Additionally, the government controlled Exchange has the
authority to exclude certain plans and dictate prices. To make the Exchange
plans a more affordable option, the premiums and rates would be negotiated
by the government within previously determined limits.131 Thereafter, insurers
must submit justifications for any potential increase in their premiums and go
through a bureaucratic review process.132 Most alarmingly, an Exchange
administrator is given what seems to be almost absolute discretion to refuse
offering any insurance plan not in the “best interests” of qualified
126. House Comm. on Ways and Means, Energy and Commerce, and Educ. and Labor, 111th Cong.,
America’s Affordable Health Choices Act (July 14, 2009), http://edlabor.house.gov/documents/111/pdf/
publications/AAHCA-BILLSUMMARY-071409.pdf.
127. Legislative Notice, supra note 110, at 4.
128. Id. at 8.
129. Id.
130. Id.
131. Id.
132. Id.
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575
individuals.133 The Act leaves the “best interests” standards entirely
undefined.134
The requirement of healthcare additionally extends beyond individuals to
ensure that insurance is not overlooked by any entity. In this sense, employers
too are faced with certain mandates. Again, all insurance coverage offered by
employers must meet certain minimum benefit requirements laid out in the
Act based on what insurance market the employer-based coverage would fall
into.135 Employers with more than 200 employees must automatically enroll
employees for health insurance coverage.136 Employers with more than 50
employees are assessed a “free rider tax” for each employee who obtains
insurance through the Exchange rather than the employer, and receives a tax
credit (subsidy) to do so.137 The employers’ penalty differs depending on
whether or not they offer the minimum essential coverage to their employees
in-house through their own self-sponsored program. “If an employer has more
than 50 full-time employees (FTE), does not offer coverage, and has at least
one FTE getting credit, then the penalty is $750 per FTE.”138 On the other
hand, “[i]f the employer has more than 50 full-time employees, offers
coverage, and has at least one FTE eligible for a subsidy in the Exchange, the
employer pays the lesser of $3,000 for each of those employees receiving a
credit or $750 for each of their total full-time employees.”139 This means that
under this second situation, even though an employer offers coverage, that
coverage is not deemed to be affordable for at least some employees.140 While
a tax credit is available for small-businesses to encourage them to provide
employer-sponsored plans, that credit is available only to those employers
who purchase insurance through the Exchange.141 Additionally, the credit
phases-out based on employer size, and would only be available for a
maximum of two years.142 Thus, additional individuals would be forced into
the Exchange via their employer who initially seeks a tax incentive. However,
once firmly rooted in the Exchange, the matching benefit wears off, leaving
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
Id.
Id.
Id. at 7.
Id. at 18.
Id. at 10.
Id.
Id.
See id.
Id. at 11.
See id. at 11–12.
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employers and employees within the Exchange footing the entire bill without
assistance.
The tax punishes an employer for free riders assumedly, because the
government wishes to obligate employers to provide for their employees’ the
right to healthcare in the first instance. However, many experts predict that
this tax will cause more employers to decide to drop employer-sponsored
coverage.143 As explained earlier, certain employees will inevitably involve
themselves in the Exchange to receive the benefit of subsidies, especially if
the government subsidies offered are so generous that the employer cannot
compete with them. Therefore, if an employer is forced to pay a penalty,
whether they choose to supply coverage or not, in some cases, it will result in
a more prudent business decision to drop coverage entirely. Supposedly, when
seeking to provide for a universal natural right, this was not Congress’ intent.
During the initial legislative process, the Democratic Congress attempted
to pass what would have amounted to a “public-option” which would have
competed with private entities within the Exchange.144 The public-option
terminology describes a government-run health insurance plan not driven by
profit motive as those in the private sector.145 However, it was highly unlikely
such a version of the bill would have passed due to the heavy public
opposition. While the final version of the Act does not contain a publicoption, its passage is no less problematic. Instead, Congress adopted the
Exchange system, and granted it enough regulatory control to be satisfied.
Despite the absence of the public option, the Exchange still signifies an
unbridled degree of government jurisdiction over the healthcare industry. It
seems that the Exchange provisions are effectively the first step in a move
towards a single-payer system, with a viable public option being the only
intermediary step between what has been signed into law and what is to come.
Moreover, the Exchange will not succeed and for many of the same reasons,
a public-option would fail.
The institution of the individual mandates and the Exchange will have far
reaching effects beyond just offering a lower-cost health insurance option to
certain segments of the population. The discretionary oversight afforded to the
public sector to set rates and dictate premiums in the private sector will further
result in lower quality of care to individuals. Privately-run insurance
companies will be strained to fit their services within the specified premium
143. Id. at 10.
144. See Senator Christopher Dodd, A Strong Public Option, http://dodd.senate.gov/multimedia/
2009/PublicInsuranceOption.pdf.
145. Id.
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577
limits allowable by the Exchange. In many cases, this will mean cutting
services in order to cut costs. Capping of costs, in many cases, will result in
the capping of care. Additionally, since companies in the Exchange will have
less available financing within which to operate, the Act allows for a kind of
strict rationing of benefits, putting a ceiling on the amount of benefits
individuals and families may receive. Private insurers will unavoidably offer
the mandated bare minimum and seek to cut corners wherever possible.
This public vs. private dichotomy has created a highly charged partisan
debate. The Republican opposition to the legislation argues that the public
sector control provided for by the Act will create a reduced ability to compete
among the private sector.146 In this view, the freedom within the private sector
will operate to keep costs down, increase efficiency and innovation, and
further result in increased accessibility to services sought.147 In contrast, the
public sector is often associated with vast bureaucracy, unresponsive to
individual needs and concerns. Interestingly, this is the opposite of protecting
individual interests which the Act purports to achieve. By ordering that all
insurances plan must offer “x” services and charge “y” price, the Exchange
eliminates the possibility of healthy competition between the insurers. In such
a situation, there can be no competition when the industry operates with such
uniformity; knowing that the playing-field is even, there is no incentive to outperform. Rather than making such sweeping mandates, private sector
discretion allows citizens to get the best quality for the amount they are
willing to pay. Generally speaking, competition is the most efficient means by
which to lower costs while increasing coverage. For instance, when “A”
insurance company sees “B” insurance company offering a service at a lower
price, “A” is given incentive to find a way to offer those same or more
services at an even lower rate so as to divert customers away from “B.” Thus,
the most effective system is based on competition; a race to see which can
provide the best quality for the best cost.
Increased regulation inevitably results in less goods and services, and by
extension, less choice. Many private insurers will likely be forced out of the
market due to an inability to comply and compete with the lower rates of the
Exchange. The Exchange will be funded, in part, through various taxes and
penalties on those using private insurance by outside operating companies.148
The Act purposefully creates for an excise tax on what has been termed
146. See GOP Solutions for America, Health Care Reform, http://gopleader.gov/UploadedFiles/
Summary_of_Republican_Alternative_Health_Care_plan_Updated_11-04-09.pdf.
147. Id.
148. Legislative Notice, supra note 110, at 14–16.
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“Cadillac plans,” or in other words, those private plans which administer the
best coverage available. Health insurance plans that exceed $10,200 for
individuals and $27,500 for families are subject to a 40 percent tax.149 This
creates a clear incentive for those generally higher-income individuals who
would be subject to the tax to buy into the Exchange. By squeezing out the
independent private insurer, individuals with the ability to pay are subjected
to the effects of government compulsion and unwittingly moved into the
government-controlled market. Those who have been forced, without much
choice, to buy into Exchange plans will fund those low income individuals
already within the Exchange who cannot afford the costs of healthcare. These
individuals, moving from their private or employer-based insurance plans, will
thereafter subsidize those individuals receiving affordability credits or
hardship waivers in the Exchange. The government, then, is relying on those
moved into the Exchange who do not receive a tax credit, to pay for others
entering the Exchange because of the offered government subsidy. In reality,
the government’s subsidy is funded by higher income individuals rather than
the government itself. Because of this, it is estimated that the Act “requires
nearly 14 million Americans to purchase unsubsidized insurance that is more
expensive than they could get under the current law.”150 The Act proponents
have euphemistically termed these results as “cost sharing levels that ensure
access to all.”151
The end result is to appropriate private healthcare plans under
government supervision, providing for strict oversight and rationing. Through
excessive regulation and commandeering, the government has usurped an
exceptional level of control over the healthcare industry. Yet, the government
cannot forego maintaining this level of influence because it is means by which
they pay for and provide for their forced right. Unable to manage the private
sector in the same fashion, the government justifies its increasingly hegemonic
expansion of public supremacy.
PART IV: THE COST OF A FORCED RIGHT & “BREACH” OF THE
SOCIAL CONTRACT
This is not a debate about prices, coverage or choosing doctors. This is ultimately
about what kind of country we are going to be in the 21st century. America is not just
a nationality. It’s not just a massive land from Hawaii to Maine from Wisconsin to
149. Id. at 15. Amounts have been changed to reflect the actual numbers reflected in the Act.
150. Id. at 4.
151. See House Committee on Education and Labor, supra note 126.
2011]
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579
Florida. American is an idea. It’s the most pro-human idea ever designed by
mankind. Our Founders got it right when they wrote in the Declaration of
Independence that our rights come from nation and nature’s God, not from
government. Should we now subscribe to an ideology where government creates
rights and is solely responsible for delivering these artificial rights and then rations
these rights? My friends, we are fast approaching a tipping point where more
Americans depend upon the federal government than upon themselves for their
livelihood, a point where we, the American people, trade in our commitment and our
concern for our individual liberties in exchange for government benefits and
dependencies. Rep. Paul Ryan (R-WI)152
Based on the foregoing, it is easy to conclude that a natural right to healthcare
as provided by the Act is logically impossible. Because of this, the Act creates
and forces a right rather than allowing it to come to fruition naturally. Any
natural right which has been retained by the people derives strictly from the
social contract as agreed upon and entered into by the governed individuals.
By the same account, any right whose protection is justified by the contract
cannot derive from the government itself. Government cannot force a natural
right, place it within the protection of the social contract, and then seek to hold
itself accountable for the right it created.
In this sense, government uses the contract to protect its own creation,
whereas, the social contract, as originally conceived, was established to
protect those rights that individuals retained after certain other rights were
relinquished for the common good. A retained right cannot be created posthoc. The fact that it was retained makes clear that it was already in existence
at the time the agreement was put in place. Forcing a natural right causes a
breakdown in the social contract because that contract was established for the
protection of rights against outside interference. It is axiomatic that
government is not permitted to use the social contract to justify its own
assertions of power by arguing that its power protects a natural right, and is
thereby permitted by the contract. Quite the contrary, natural rights are
described as “bright line limits on government action allowing each individual
a district and substantial sphere of private action free from state coercion.”153
Consequently, natural rights are limits on government action, not an avenue
for the government to absorb more power and become further embedded in
private life. Put rather simplistically, healthcare as a right, is not
constitutional, nor can it be natural. Thus, it is being forced upon the social
152. Rep. Paul Ryan, 111 CONG . HOUSE FLOOR DEBATE (Mar. 21, 2010), available at
www.cspan.org.
153. Spiropoulos, supra note 94.
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contract. Forcing a natural right in this manner causes a breach in the social
contract.
Breach of the social contract is rather clear when a right is
constitutionally grounded because the existence of the right and its parameters
are predetermined. However, when the right is not constitutionally grounded,
the argument for breach becomes more difficult. The social contract was
established for the protection of those retained natural rights. And, the
government created as a by-product of the contract was ordained with the task
of protecting against infringement of those rights. Therefore, the government
has the power to act, under the contract, when those actions would be
consistent with the contract’s purpose.
In the context of the Act, the government is creating a right, and
thereafter, arguing that it is natural in order to justify its usurpation of power.
The government deems the right to healthcare to be natural in order to argue
that it is forced to act in accordance with that right. In other words, the
government argues that its actions are acceptable under the contract because
it is protecting a natural right and it is bound by the act accordingly under the
principles of natural law. Otherwise, the government would lack the power to
act in such a manner under the contract. Yet, this is where the problem
presents itself. Without a right already in existence, the government lacks the
power to act under the contract to protect a right. If there is no right to protect,
the government cannot act. It cannot create a right and then argue it must be
protected per contract terms. For that reason, the government initially lacks
the power to act under the contract because its authority does not stem from
anywhere except its own creation. The Act stretches the contract beyond all
conceivable means.
Healthcare, as a right provided for by the Act, is not a natural right as the
founders or John Locke would have understood it.154 In their view, natural
rights existed prior to the formation of government; they are, by definition,
natural. Since a right to healthcare did not exist naturally, the right is forced.
Therefore, any oversight on the part of the founders to fail to expressly protect
a natural right would be of no consequence if a right was truly inalienable.
And, while the founders may not have contemplated a right to healthcare,
what they did contemplate was a government based on natural rights, not
government-created rights. A right that is created is, undoubtedly, not natural.
Since there is no government in the pre-political state of nature, there cannot
154. Andrew Busch, Is Healthcare a Right?, CLAREMONT INSTITUTE , Mar. 2010, available at
http://www.claremont.org/publications/crb/id.1607/article_detail.asp.
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581
be a right to government-supplied health care in the state of nature. The right
must exist naturally, before the creation of the government, such as the rights
to life and liberty.
The right to life is distinct from a right to healthcare. If a right to
healthcare is natural, Democrats are forced to also accept the proposition that
healthcare existed as a right prior to their actions. This view is strained
because healthcare as a right did not exist prior to government creation in the
Act. Before the provisions of the Act came into play, a portion of the
population did not naturally have healthcare services available to them.
Healthcare itself does not exist naturally, but is an outgrowth of civilized
society. Despite this, as Congressman Ryan poignantly points out, the Act
creates a forced and artificial right which flows directly from the government
rather than nature.155
In the time post-Calder, the Court has been rather opaque regarding
where it stands on the existence of natural rights and their interaction with our
form of government. Since Calder, the Court has not again confronted the
express question of whether there are natural rights which are legally
enforceable and have the power to constrain the government to act in
accordance with them. Nor has the Court ever confronted the issue of whether
there exists a right to healthcare, natural or otherwise. Ruminations on natural
rights will appear from time to time, generally as dicta without any
conclusively clear holding. In spite of this, if the Court were to confront the
explicit question we face today, it seems likely that the result would be a
hesitance pull from outside our constitutional scheme and confer healthcare
with the status of a natural right.156
In his dissent in Cruzan v. Missouri Dept. of Health, Justice Stevens
accepts the idea that “[t]here is a fundamental natural right expressed in our
Constitution as the ‘right to liberty’ . . . .”157 Justice Stevens, then, seems to
accept the proposition that at the very least, the inalienable rights to life,
liberty, and pursuit of happiness are protected by our constitutional
framework. In defining natural rights as such, the question becomes whether
the right to liberty encompasses healthcare. Furthermore, in his dissent, the
right to liberty was described in the context of the freedom to live without
government infringement.158 Therefore, in Justice Stevens’ view, it seems that
155. Rep. Ryan, supra note 152.
156. In fact, the Court will confront a variation of this issue as the states have challenged the
constitutionality of the individual mandate in the Act albeit on different constitutional grounds.
157. Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 333 (1990) (Stevens, J., dissenting).
158. Id.
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the natural right to liberty does not necessarily confer additional rights, but
rather prevents rights already secured from being infringed upon or taken
away. The creation of a yet-undeclared natural right to healthcare cannot
easily be squared with this view.
Soon after Calder, a lower court confronted the possibility that natural
rights may be legally enforced as an outgrowth of the Privileges and
Immunities Clause in Corfield v. Coryell.159 The lower court held among the
natural rights protected by that Clause was a citizen’s right to travel among the
several states and hold the same natural rights as she moved throughout the
nation, irrespective of where she was located. Reflecting on this reasoning, the
Supreme Court in Hague v. Committee for Industrial Organization, explained:
At one time it was thought that [the Privileges and Immunities Clause] recognized
a group of rights which, according to the jurisprudence of the day, were classed as
“natural rights”; and that the purpose of the section was to create rights of citizens
of the United States by guaranteeing the citizens of every State the recognition of this
group of rights by every other State.160
Yet, those rights secured by the Privileges and Immunities Clause are
expressly and implicitly found within the Constitution, and as such, are not
natural. Shortly thereafter, the Court discarded the natural rights theory that
underlay Corfield.161 As such, the Supreme Court recognized this flaw in the
lower court’s reasoning.
Lastly, in G. D. Searle & Co. v. Cohn, the Court hinted at another view
regarding the existence of natural rights. In declining to find a right to the
shield provided by a statute of limitations, the Court stated “[t]heir shelter has
never been regarded as what now is called a ‘fundamental’ right or what used
to be called a ‘natural’ right of the individual.”162 From this perspective it
seems that the Court views natural rights as encompassed in the doctrine of
fundamental rights. It specifically analogizes the fundamental right to the
natural right as they are one in the same. It appears to suggest that the Court
believes that natural rights were merely the precursor to the modern doctrine
of fundamental rights. Therefore, if the Court remains consistent in this view,
their interpretation represents a segment of rights which are distinct from
natural rights as generally understood. The Court appears to use the ‘natural
right’ terminology loosely without commanding the extensive history supplied
159.
160.
161.
162.
Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (C.C.E.D. Pa. 1823).
Hague v. Committee for Indus. Organization, 307 U.S. 496, 511 (1939).
Id.; see also Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281 n.10 (1985).
G. D. Searle & Co. v. Cohn, 455 U.S. 404, 408 (1982).
2011]
RENEGOTIATING THE SOCIAL CONTRACT
583
by the theories of Rousseau, Hobbes, and Locke. By equating natural rights
to the doctrine of fundamental rights, the Court, in essence, does no more than
refer to constitutional rights implicitly found and protected. Moreover, as it
is clear at this point in time, the Court has failed to find a fundamental right
to healthcare, and by extension, would not find a natural right either.
In Justice Goldberg’s concurrence in Griswold v. Connecticut, he argued
that the Court is not permitted to declare rights as fundamental by looking
solely to their own personal preferences.163 Rather, Justice Goldberg argued
that in order to discern which rights exist outside of those expressly
guaranteed, the Court must look to the “traditions and collective conscience
of our people to determine whether a principle is so rooted . . . .”164 He further
reasoned that “the inquiry is whether a right involved such a character that it
cannot be denied without violating those fundamental principles of liberty and
justice which lies at the base of all our civil and political institutions.”165
In Griswold, Justice Goldberg was in search of some contractual basis to
serve as a foundation for an implicitly created fundamental right. The same
reasoning can be applied when trying to discern whether Congress may create
a natural right to healthcare. If it is argued that the right to healthcare is
natural, the legislature cannot create such a right in light of their personal and
private notions. While it may be true that the power of the legislature derives
from a fundamentally different origin than the power of the Court, it still holds
true that both branches are confined by the same principles in determining the
existence, or non-existence, of any right to be ranked as fundamental or
natural. What is more, Congress, in contrast to the Court, is considered to be
more politically accountable and constrained by notions of popular opinion
and ideology. Therefore, any right deemed to be natural, must primarily exist
naturally and be “so rooted” in the “traditions and collective conscience of our
people.”166
Justice Goldberg’s reasoning in Griswold can be safely extended to the
natural rights context because he articulates a similar concern that Justice
Iredell expressed many years before in Calder. To be sure, a distinction can
be made that Justice Goldberg spoke about implicit rights, where as Justice
Iredell argued against the enforceability of natural rights. Nevertheless, the
underlying problem remains constant in both contexts. As citizens of the
United States, we accept the presence of the Constitution as our authoritative
163.
164.
165.
166.
Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring).
Id., quoting Snyder v. Massachusetts, 291 U.S. 97 (1934).
Id., quoting Powel v. Alabama 287 U.S. 45 (1932).
See supra note 165.
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governing document because we believe that we understand its limitations and
boundaries. We can point to specific provisions which either permit
government action or restrain it. A government permitted to govern by the
principles of natural justice and natural rights is entirely unchecked in the
same way the Court would be unchecked if they adjudicated according to their
own discretion and not the law. Such unimpeded power of manipulation
would lead to a governing body wholly without limits—a completely arbitrary
form of government.
Relating back to the priority problem, substantive problem, and
foundational problem presented in Part I; relying on natural law to create
rights outside of our constitutional scheme results in an unworkable structure
turning our governing institutions into convoluted shadows of what they were
intended to be. It renders the Constitution void as our governing document if
it can easily be supplanted by calling on natural rights without some form of
express authority.
Reform-voting Democrats may argue in response that a natural right to
healthcare is necessary for preservation of the right to life. As such, it would
be grounded in tradition and the collective conscious as a clear extension of
the right to life which has been accepted both expressly and implicitly from
the beginning of the nation. However, as noted by one scholar, proponents of
this argument conflate two notions that are “superficially complementary,” but
actually distinct: “the duty to help others in mortal danger, recognized by
doctors themselves in the ethics of their profession, and the right to forcibly
extract help from others.”167 The first represents a “noble code cultivated in
a free society and accepted by free people who voluntarily take responsibility
for their fellows.”168 The second is a “form of conscription in which some
individuals forcibly commandeer the services and resources of others for what
is fundamentally their own private benefit.”169
While our healthcare industry may have a moral obligation to supply all
of the appropriate services necessary to save a life, the failure to adhere to this
moral duty does not automatically result in the denial of the right to life. The
right to life is denied when citizens actively inhibit another’s ability to
continue living, for example, by taking from the individual their food, shelter,
or most disturbingly, their life. This is different from a citizen, or the
healthcare industry, failing to assist another with the exercise of their right.
167. Busch, supra note 154.
168. Id.
169. Id.
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RENEGOTIATING THE SOCIAL CONTRACT
585
The failure to give another food or shelter is not the same as taking another’s
food or shelter away from them. In the first case, the right to life persists in the
absence of the added provisions. In the second case, it does not. In any event,
the argument is described as “disingenuous,” because the right to healthcare
goes far beyond a right to life.170 “[I]nasmuch as liberals are not contending
for equal access to lifesaving procedures; they are contending for guaranteed
issue of the whole panoply of health services.”171
Looking beyond the elucidations of the Court despite the lack of
precedent, it seems unmistakable that there exists no natural right to
healthcare because of its inconsistency with the basic natural rights doctrine.
The Democratic Congress is attempting to thrust upon the American people
healthcare legislation by arguing that all Americans share an equal right to be
insured. But in this context, insurance does not exist outside of the
government’s creation. By the very definition of natural rights, it is
contradictory to their existence to argue that one can be created through the
Act. A right which is forced is not a natural right. While it may be more
arguable that one has a right to health, a right to specific healthcare services
does not exist in a state of nature; the government must affirmatively provide
for it.
People may resist the notion of being insured. As it currently stands,
many Americans choose not to purchase healthcare for a variety of different
reasons. If, in fact, there exists a natural right to healthcare, no person would
be able to deny such a right. Natural rights exist inherently in the human
condition, and the ability to deny the existence of any government-created
right lies directly in conflict with the view that its existence is inherent, and
therefore, natural. Its preexisting character begs the question, if no
government has the ability to deny any citizen a natural right, then why must
the government force such a right?
By the strict terms of the Act, each individual and employer is forced to
secure the right by either acquiring or offering the proper health insurance.
The right therefore, must be negotiated and purchased, and the right cannot
exist without all members of society buying it. By analogy, one has right to
purchase and own a gun. This Second Amendment right exists for every
citizen whether or not they choose to actually engage it by purchasing and
owning a gun. A similar argument can be made for most of our rights which
have been secured; they exist whether or not we as a people choose to exercise
170. Id.
171. Id.
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them. A woman who has chosen to forgo her right to obtain an abortion still
retained the right to make that choice. An atheist retains the freedom to
exercise a religion despite their current abeyance and disbelief.
By contrast, the same choice cannot be said of a natural right to
healthcare. If one person decides not to exercise their right, and does not buyin by obtaining an insurance policy of acceptable standards, the entire system
fails and a universal right to healthcare does not exist. The right to own a gun,
the right to exercise ones’ religion, or the right to have an abortion is different
from a right which requires one to affirmatively have healthcare provided for
them. If healthcare services are not actually supplied or if the right is not, in
fact, engaged, the right does not exist. If citizens can negotiate away their right
by assessing whether the penalty meant to enforce the mandate provides
enough incentive to procure insurance, the government does not end up with
a situation where everyone holds the right.
Under the new system, certain individuals will accept the penalty rather
than the right. In this context, those who accept the penalty and ignore the
mandate do not retain a right to healthcare which simply has not been
exercised. By contrast, because of its affirmative nature, the right to healthcare
cannot survive in a vacuum. In this case, the right to healthcare cannot exist
without positive enumeration in the law because it must be affirmatively
provided for. And yet, a natural right is one which is retained—the
characteristics of retained rights being that they are not positive and are not
enumerated. That Congress had to force the right by writing it into our
positive law by way of the Act is a strong indication that the right is not
natural.
Once again, by analogy, while some members of society may not have the
means or the desire to purchase a gun, their right exists nonetheless. Should
they ever secure the proper funds, they may exercise their right at that time.
As it stands now, for those members who cannot afford health insurance, they
lose more than just the chance to exercise their right in a real way. Just as with
the gun, they may surely purchase healthcare if they later obtain the money to
do so. But, this purchase does not amount to a right precisely because the
individual sought out the care on their own and without the government
backing. During the interim, when the individual did not have the money to
buy insurance, the right was non-existent. Unlike our other rights, there is no
free-floating choice or option that remains in existence even when the right is
not being exercised. A natural right is not created by choice, but an individual
retains the choice whether to pursue the right. Healthcare gains the status of
a right, under the current policy choices, only upon the time when the health
insurance is positively provided for by the government and actually secured
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by all. Under this thinking, the failure to exercise ones right creates the loss
of the right, whereas the right comes into existence only upon the purchase of
the right.
If the right is not universally held, it cannot be deemed natural, something
the Act proponents would like it to be. A right that is natural inheres in all
people without exception—it is universal, by definition. Yet, it has been
recognized that even under the Act universality is lacking—24 million
Americans will still remain uninsured and without coverage.172 What’s more,
certain individual may reject the right by accepting the penalty instead.
The system created by Congress provides for the natural right of some
only by ensuring that others will too exercise their right. Without this
universality, the entire design scheme fails. Therefore, for the first time, the
exercise of one’s right directly affects the ability of others to exercise their
right. Universality is achieved only by forcing all individuals to attain health
insurance. Without certain purchasing individuals exercising their right, the
right of others simply cannot exist. However, this is utterly inconsistent with
the generally accepted principle that a right is individually owned and cannot
be dependent on the community.
It is unlikely that there will be enough purchasing individuals in the Act’s
system to subsidize those who cannot afford to make the purchase. This, once
again, produces healthcare coverage that is not universal—the antithesis of the
government’s plan. In an attempt to avoid this result, Congress has provided
penalties for those who fail to exercise their right. Such a premise has never
before been attempted because of its draconian and illogical results. Because
natural rights exist entirely apart from the law, it is contradictory to call upon
the law for its enforcement. Furthermore, the penalty for not exercising ones’
natural rights contradicts the essence of a right—which implies that an
individual has discretion and choice whether or not to engage it.
Additionally, because some citizens already had adequate healthcare preAct, the creation of a natural right becomes even more problematic. If the right
existed naturally, all citizens would have retained it. The government would
not have to use the Act to provide the right for some but not others already
accounted for. Therefore, the social contract did not entirely fail to secure the
natural right, if it can be created and defined as such. It has obtained access
to healthcare for citizens through the private sector rather than through
government coercion.
172. Legislative Notice, supra note 110, at 1.
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There also lies a distinction between what the government is compelled
to recognize as a right and what the government must actually provide. It
presents itself as an issue of a right to equal access of healthcare vs. a right to
have it guaranteed by the government. By recognizing a right as one that
requires protection, the government does no more than prevent its
infringement. The government guarantees each individual’s ability to exercise
their right, but does not supply the right for them.
In this case, the government does more than just acknowledge a right to
equal access. The Act goes beyond recognition of a pure right to healthcare
and ensures that each individual actively exercises their right. However, under
this dichotomy of equal access vs. equal results, the scheme presented in the
Act is not a viable option in light of the history of our social and political
institutions. The social contract operates as a restriction of government action;
therefore, our rights protected under the contract operate by constraining the
government, but do not mandate government action in and of itself. The social
contract exists to protect, and this does not necessarily entail a corresponding
obligation to provide.
Tracking a similar problem, in Harris v. McRae, the Supreme Court
rejected the argument that the right to abortion translated into a positive
government obligation to fund abortions for the poor.173 Any legitimate
assertion of authority lacks the ability to mandate the implementation of a
right. “The recognition of political authority does not entail a right to
command, but only a right to punish transgressions of the law.”174 This sort of
thinking has been accepted as a basic premise from the founding of our nation.
The framers were more concerned with creating a framework of rights
that protected “freedom-from” rather than “freedom-to.”175 “Freedom-to” may
be equated with an affirmative obligation to provide, whereas “freedom-from”
may be equated with a duty to refrain from interfering. Explained by one
scholar, “Americans of the founding era were deeply committed to individual
rights, which typically consisted of what we call negative rights—freedom
from.”176 By contrast, a right to healthcare, as is provided for by the Act, runs
contrary to this scheme as it would fall more directly in line within a
“freedom-to” framework.
When looking at the social contract exclusively in terms of the healthcare
legislation, there is no right for the social contract to protect because,
173.
174.
175.
176.
See Harris v. McRae, 448 U.S. 297 (1980).
MEDINA, supra note 33, at 153.
McAffee, supra note 47, at 610.
Id.
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correspondingly, there is no natural right to healthcare. Because of this, the
Act breaches the three main terms of the social contract as discussed in Part
II: consent, reciprocity, and moral obligation. Degradation of each of these
terms results in a material breach, and as well-known under the principles of
contract, a breach cannot come without certain costs. Breach has come in the
form of the Quality Affordable Health Care for All Americans Act, and even
the slightest adherence to any of the provisions as proposed will result in a
breach that will be costly for both the individual citizen and the government.
Initially, there is a clear lack of voluntarily-given consent. If citizens are
not receiving the benefits of a protected right, they will not consent to enter
into the social contract. Because healthcare cannot be a protected right, any
consent to the enactment of this healthcare reform legislation will be artificial
and compulsory. As noted above, entering into any contract requires the
freedom to choose, and consent cannot be binding unless freely given.
Succinctly stated by one legal scholar, “[f]or consent to bind a person, there
must be a way to say ‘no’ as well as ‘yes’ and that person himself or herself
must have consented . . . . [N]o person can literally consent for another.”177
Clearly, consent to buy into the healthcare right is not freely given when
health insurance is required through a mandate. Additionally, consent is
further inhibited because the failure to abide by the mandate results in a
penalty. A person does not consent to that which is mandatory; they have no
power to say yes or no. Additionally, because of the penalty an individual is
punished for failing to exercise their right. Under the Act, the ability to
consent and the value of individual choice has been stripped away.
It may be argued that an individual voluntarily consents to the mandate
when they decide to follow its terms rather than the terms of the penalty. Even
though the individual may choose to accept the penalty rather than the
mandate, this does not restore the individual’s freedom of choice. Such choice
between a mandate and a penalty is superficial; for even if an individual
chooses the penalty, their choice is still circumscribed by the mandate—the
penalty is an outgrowth of the failure to adhere to the mandate. For consent to
be a consequential act, individuals must be given the opportunity to consent
primarily to the mandate in the first instance. As it stands now, any choice that
is made occurs within the parameters already laid down by the mandate; the
individual is never given a choice to accept or deny the terms of the mandate
itself. Because there is no meaningful consent, the right is forced in the truest
sense of the word.
177. Spiropoulos, supra note 94, at 668.
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Protection of a right to healthcare was not contemplated as part of the
bargain that was agreed to by the terms of the contract. The insurance mandate
endeavors to create a natural right and enlarges the public sector, both going
far beyond what individuals have contracted for. When government begins
acting outside of the bargain as initially agreed upon, the contract is breached,
and those governing do so without the consent of the governed. The Supreme
Court has explicitly explained the import of this standard, stating: “[w]e set
up government by consent of the governed, and the Bill of Rights denies those
in power any legal opportunity to coerce that consent. Authority here is to be
controlled by public opinion, not public opinion by authority.”178 Hence, the
government lacks the authority to shape the opinion of the public through use
of coercive and derisive means. Self-determination and self-government
represent the basis of the social contract and our government. Inescapably,
people will adhere to contractual terms more strongly if they are able to
control what those terms will signify. Governing according to the consent of
citizens represents a well-established principle of law that weighs heavily in
the mind of the Supreme Court when faced with significant constitutional
issues surrounding the framework of our government. But, the current
Congressional majority has lost sight of this principle, governing according
to their own whims. Through the Act, the principle becomes more of a fanciful
ideal than a practical form of governance.
Under a system such as ours, organized based on a “consent of the
governed” standard, the government has no authority to act when their actions
are rejected by the governed. For the executive and legislative branches, a loss
of legitimacy becomes inevitable when they act in this capacity. In the case of
the current legislation, the governing bodies have acted without authority or
the backing of public opinion resulting in a distinct failure of the political
process. When the government acts without consent in the face of such high
opposition, such actions are beyond their delegated powers and illegitimate.
A political authority is legitimate only if: (1) we are allowed to choose who is going
to govern us . . . (2) we have fair access to political power, and (3) we are allowed
to be both negatively free, in the sense that the state does not interfere in our private
domain, and positively free, in the sense that the state provides use of the necessary
means to develop our capacities as autonomous persons with a sense of dignity.179
178. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
179. MEDINA, supra note 33, at 152 (emphasis added). Providing the means to succeed is not the
same as ensuring that each individual will succeed.
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Further, as argued by Angus, the desire to achieve a fair allocation of
healthcare resources depends precisely upon cultural beliefs and social
attitudes.180 And yet, the American people have decisively rejected the shape
that healthcare reform has taken. According to a CNN poll, approximately
59% of Americans oppose the legislation with that number slowly and
consistently rising as more time passes.181 Discomfort with the mandates could
be seen in boisterous, and at times hostile, town hall meetings through the
Untied States in the summer of 2009.182 A further example of this can be seen
through the actions of attorney generals across the nation who filed a lawsuit
challenging the legislation, specifically the mandate, as unconstitutional
immediately after passage.183
Moving forward, the Act also creates a problem in the terms of shared
responsibility and reciprocity. By forcing individuals into insurance policies
they may not desire, and providing punishment for lack of adherence, the
legislation places the community over the individual. Per the terms of the
social contract, the interests of the individual and the community are to be
placed in a sustainable balance, with the protection of individual interests
remaining at the heart of the contract. Individuals agree to protect community
interests only as means to ensure their own interests will be protected.
Sustaining reciprocity within the social contract is achieved by avoiding an
excessive concentration of power, whether found in the public or private
interest. The idea of a proper balance relates back as far as the theories of
Rousseau who warned against the combination of a prince who also acts as the
sovereign.184 Specifically, under the American form of government, it is
supposed to be the individual who acts as the sovereign rather than the
collectivity represented by government.185
Therefore, the reciprocal nature of the contract relies on the delicate
balance between the individual and the community, with each individual
holding the upper hand to shape the community interests. Thus, the onus falls
180. Douglas Angus, Some Thoughts on Rights and Responsibilities in Healthcare, 11 NAT ’L J.
CONST . L. 261, 263 (2000).
181. CNN Poll (Mar. 2010), http://www.redstate.com/jrichardson/2010/03/22/cnn-poll-59-percentnow-in-opposition/.
182. Specter Faces Hostile Audience at Healthcare Forum, CNN (Aug. 11, 2009), http://
www.cnn.com/2009/POLITICS/08/11/specter.town.hall/index.html.
183. Complaint, Florida ex rel. McCollum v. U.S. Dep’t of Health & Human Servs., No. 3:10-cv-91
(N.D. Fla. Mar. 23, 2010), available at http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_Politics/
healthcare.pdf (at this point, the case has survived the first hurdle).
184. ROUSSEAU , supra note 72, at 112.
185. United States v. Lee, 106 U.S. 196, 208 (1882).
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evenly on each individual so that the greater good might be realized. However,
in the case of the Act, that balance has been broken because the community
has entirely overpowered individual interests. The individual interest
succumbs to the needs of the greater community, creating a disincentive for
the individual to maintain compliance with the mandates of the community.
Although it may seem differently, under the Act the government is no
longer protecting the interest of the individual. Rather, government protects
a generalized conception of public health that looks past the well being of any
single citizen within the collective body. This distinction can be made in terms
of a generalized interest vs. an individualized interest. When presented in this
light, it is argued that “individual rights are inherently at odds with the
collective public health.”186 Healthcare itself focuses on individual wellness,
whereas public health is concerned with promoting optimal health of the
population as a whole.187 Focusing on the public health rather than healthcare
undervalues and sacrifices the ability to provide the best possible care to each
and every individual citizen in a singular capacity.
Provisions in the Act, specifically those that govern the plans within the
Exchange, attempt to control pricing and plan rates which affect the amount
of care that can feasibly be provided. Making health insurance more
affordable for the community at large does not result in a corresponding
benefit to any one single person. Whereas previously all healthcare decisions
were made between doctor and patient, such decisions will now be made
according to economic considerations—allocation and rationing of medical
services based on general availability. The government must determine who
will receive what care out of a scarce pool of resources. A natural right to
healthcare, then, is not an unlimited right if it is constantly being defined and
evaluated.
Some are only entitled to “x” amount of the right depending on various
factors such as age and economic standing. It follows, that the government
will be confronted with determining what one human life is worth as
compared to the indiscriminate interest in protecting all human lives. There
is a clear lack of reciprocity and mutual benefit between the public interests
and the private interests to be balanced. Furthermore, additional problems are
presented in terms of reciprocity because, for many, the Act will result in a
forced investment with varied, and often lacking, individual returns.
186. Elizabeth Weeks Leonard, The Public’s Right to Health: When Patient Rights Threaten the
Commons, 86 WASH . U. L. REV . 1335, 1344 (2009).
187. Id. at 1344–34.
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Generally speaking, the social contract follows a basic return on
investment theory. Each citizen agrees to contract, or invest, with the aim of
receiving specific returns. In the absence of such returns, the contracting
parties would not have agreed to offer their consideration for the bargain.
When this occurs, individuals will seek an organizational scheme that more
tightly conforms to their needs and wants by pulling out of the contract that
has failed to adequately protect their individual interests.
Under the Act, those with the most returns have invested the least, and
vice versa, those with the least returns have invested the most. In this context,
returns can be directly pinned to the effects of the affordability credits, or
those provisions which subsidize the cost of healthcare for some, but not all.
Based on a subjective conception of what is affordable, an individual’s returns
under the Act are dependent on ones’ income and ability to afford the
mandate. The cost of a healthcare plan increases for those who are able to
afford it in order to compensate for the decreasing costs of those who are
unable to afford it. The individual is pitted against the community, leaving
certain groups feeling resentful and others feeling entitled. Act proponents
have re-termed this result as shared responsibility, but there cannot be shared
responsibility when the burden is harbored only by some. The outcome is an
uneven distribution of the economic burden as the reciprocal gains for certain
parties are obsolete.
Individuals are willing to make deals for the greater good only because
there are others reciprocating by making deals for their good as well. When
these deals fall through, and some are given more than others, the breach
breeds a culture and animosity and a loss of incentive for wealth creation. The
Act creates a rather backwards outcome in that “[w]ealth generation is taken
as an endeavor that can and should be harnessed to aid in producing the social
changed believed are more beneficial for the greatest number of people.”188
Rather, in order to be appropriately maintained, the contract should create an
incentive for wealth creation. The Act produces the opposite result by creating
a culture of dependence. People will come to rely on the various government
subsidies to supply insurance for their healthcare needs. Even though most
people will not forgo the opportunity to be wealthy because part of their
wealth will be used for someone else’s healthcare, this concept flies in the
face of fundamental fairness. The contract was meant to serve as a means that
allowed each individual an equal opportunity for success in society.
188. Francis Cianfrocca, Wealth Creation Under Attack, COMMENTARY , June 2009, at 27.
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Therefore, each individual must be allowed to reap the benefits of what they
have sown.
Lastly, the Act breaches the term of moral obligation by creating an
obligation forced by law rather than stemming from morality. As explained,
the Act creates a responsibility of the more well-off to account for the right of
the less well-off. When the individual feels their own interests are becoming
more threatened, there is a natural tendency to become more inclusive. People
will promote the greater good when their own investments are adequately
protected. By penalizing the income-producing members in the contract, the
Act creates a further disincentive to consider the general welfare. The opposite
result will be brought out—individuals will exclusively look out for their own
needs. Because the government has failed to protect certain individual
interests, the task is taken on by each individual party. It is human nature that
people will care for others when they are not forced to do so. Individuals do
what is right by others when they feel secure in their place in society.
Charitable tendencies are exhibited when individuals are permitted to act
according to their own conscious. When the law is structured so as to obligate
people to start giving up their own property, people become insecure and less
willing to let go of their property on their own accord. As such, when
individual citizens are permitted to govern themselves without outside
intervention, they respect the moral claims of other members in the collective
society.189
PART V: CONCLUSION: HEALTHCARE REFORM & RENEGOTIATION OF THE
SOCIAL CONTRACT
Many proponents of the Act call for a “renegotiation of the social
contract”—in essence, a new social contract.190 They argue that current
economic conditions call for further enlargement of the public sector to
correct certain social failures and inequities.191 However, as we have seen,
with a resulting domination of the public sector, the social contract becomes
non-existent. Where there is no balance between the individual and the
community, the individual has no incentive to be bound by larger community
interests. Therefore, I would argue the remedy would call for renegotiation in
the reverse.
189. McAffee, supra note 47, at 598.
190. See Robert Rich, Health Policy, Health Insurance and the Social Contract, 21 COMP . LAB . L.
& POL’Y J. 397 (2000).
191. Id.
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While renegotiation is needed, such renegotiation must revert back to the
basics on which the social contract was originally built. If we are to restore the
American idea of the social contract, we need to return to the basic principles
of mutual obligation within a framework that is financially responsible and
just.192 Healthcare for those in need can be provided for without attempting to
create a natural right and abusing the social contract. The social contract
cannot exist for the protection of a natural right when such a natural right does
not exist. This causes the initial breakdown. Consequently, there cannot be a
forced natural right to healthcare when one does not occur naturally. As
argued by Locke, we cannot view any right granted to an individual in a
vacuum, for it comes with a corresponding duty.193 Therefore, in the terms of
healthcare, any grant by the government for assistance must come with a
corresponding individual responsibility to care for and maintain one’s own
life.
Furthermore, the creation of a right to healthcare robs the nation of one
of the benefits of federalism—allowing states to act as laboratories, testing
different solutions to determine which will rise to the top. The Act places the
flexibility of policymakers in a state of paralysis; it inhibits legislators from
remaining innovative when responding to the problems of the day.194
Explained by others, “[h]ealthcare as a right leaves little room for democratic
debate or compromise since the point of a right is to remove an issue from the
realm of majority rule. It would mandate a ‘wrenching’ economic and social
dislocation in order to promote the private benefit of the 12% of Americans
who do not have health insurance at any given time.”195
Nonetheless, perhaps health care could be regarded as necessary to affect
the natural right to life or the pursuit of happiness, and consequently, it should
be treated as a natural right under the social contract even as renegotiated.
This formulation, too, is greatly flawed. There lies a distinction between the
right to healthcare and the right to “Life, Liberty and the Pursuit of
Happiness.” While it may be true that the existence of healthcare would
enhance a person’s right to life and liberty, it does not follow that the denial
of healthcare will thereby result in a denial of those rights as well. Therefore,
the social contract will not deny any healthcare—or the right to a healthy life.
192. See Stuart M. Butler, Restoring the American Social Contract (July 26, 2007), THE HERITAGE
FOUNDATION (Aug. 29, 2007), http://www.heritage.org/Research/Lecture/Restoring-the-American-SocialContract (arguing for healthcare reform based on reciprocal obligations).
193. Zuckert, supra note 58, at 727.
194. Busch, supra note 154.
195. Id.
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But, at the same time, the social contract will not guarantee healthcare. Any
further reform of healthcare must be based upon fair community consent,
individual responsibility, and reciprocity.